A changing truth: Do online news stories about arrests constitute libel after expungement?

A class-action lawsuit scheduled for argument next month in Connecticut claims that the news media defamed arrestees in online news stories about criminal records that were later expunged.

Lorraine Martin of Greenwich claims in the suit that news stories about arrests that were true at the time of publication became false after expungement, according to a New York Times op-ed by columnist Bill Keller. When readers discover the old stories via search engine, the suit claims, there is a republication and a new libel.

Martin, a nurse, was arrested with her two sons in 2010 after police searched their home and found a small amount of marijuana, scales and plastic bags, the story says. Martin agreed to take some drug classes, the case was dismissed and the record was purged.

Keller talked to several lawyers who predicted the suit would be dismissed because of First Amendment concerns. “But the dilemma underlying this case is real, and not so simple,” Keller writes. “The Connecticut case is just one manifestation of an anxious backlash against the invasive power of the Internet, a world of Big Data and ever more powerful search engines, in which it seems almost everything is permanently recorded and accessible to almost anyone—potential employers, landlords, dates, predators.”

In Europe, Keller says, the idea of a “right to be forgotten” on the Internet is becoming popular. The idea is gaining ground here as expungement laws proliferate and news outlets field more requests to take down articles. One option, he says, is for search engines to accept requests for stories to be down ranked or omitted in search results.